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Case Update - Austin v. Kroger

By: Amy Agnew

In 2015, the Texas Supreme Court stated in Austin v. Kroger, that a landowner generally has no duty to protect or warn an invitee against unreasonable dangers that are (1) open and obvious or (2) otherwise known to the invitee. See Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 204 (Tex. 2015). In a typical premises liability case, the landowner’s only duty is to warn of concealed dangers.  Id. at 210.  There are two limited exceptions which are the criminal-activity exception and the necessary-use exception.

Since the Austin v. Kroger opinion, some courts have held the absence of a legal duty to warn or protect against conditions that are open and obvious, but also focus on Plaintiff’s knowledge of the condition. 

In Harvey v. Carraba’s Italian Grill, LLC, the plaintiff admitted that the alleged reasonably dangerous condition was open and obvious to him.  Harvey v. Carraba’s Italian Grill, LLC, 2016 WL 3460776 (E.D. Tex. 2016). 

In Nethery v. Turco, Plaintiff testified that she was aware an appreciated the presence of the ice on the driveway.  The court held, “the Texas Supreme Court in Austin stated that when, as in this case, the condition is open and obvious or otherwise known to the invitee, “the law presumes that invitees will take measures to protect themselves against known risks.  Under controlling precedent, the Turcos’ duty to appellant was negated by Nethery’s admission that the ice was open and obvious or otherwise known to her.” Nethery v. Turco, 2017 WL 2774448 (Tex.App.—Dallas, 2017).

Also, in Hughes v. Kroger Texas, L.P., the court further clarified that in order “to impose a duty on a landowner, a plaintiff must prove:  (1) there is an unreasonably dangerous condition on the premises; (2) the landowner knew, or should have known, about the dangerous condition; (3) the condition is concealed (i.e., not “open and obvious”); and (4) the plaintiff was not aware of the danger.”  Hughes v. Kroger Texas, L.P., 2016 WL 3390510 (N.D. Tex. 2016).